United States District Court, E.D. Pennsylvania
Wolk Law Firm (Wolk), which represents aircraft accident
victims and their families, brings three claims against the
National Transportation Safety Board (NTSB), the agency
responsible for investigating civil aviation accidents, for
“obstruction of justice and violation of due process,
” violation of 49 C.F.R. § 837.4,  and violation of
the Freedom of Information Act (FOIA), 5 U.S.C. § 552,
for failure to provide materials requested. The NTSB moves to
dismiss the first two claims on the basis of sovereign
immunity and failure to state a claim.
we conclude that the NTSB enjoys sovereign immunity, we shall
dismiss the challenged claims.
course of an investigation, the NTSB takes custody of
wreckage and other evidence, such as photographs, videos,
notes and witness statements. Wolk has requested investigative
materials related to ten civil aviation accidents in which it
represents victims and their families. It also made a
request under 49 C.F.R. § 837.4 for wreckage relating to
one of the accidents. The NTSB has refused or failed to produce
the requested materials.
sovereign immunity,  the NTSB moves to dismiss Wolk's
claims for obstruction of justice and violation of due
process and violation of 49 C.F.R. §
837.4. It also argues that Wolk fails to state a
claim for violation of due process because the rights
allegedly violated are statutory, not
responds that the Administrative Procedures Act (APA), 5
U.S.C. § 701 et seq., establishes “a
broad presumption in favor of judicial review of agency
action” notwithstanding the NTSB's assertion of
sovereign immunity. It maintains that the NTSB's
withholding and destruction of evidence violates its Fifth,
Seventh and Fourteenth Amendment rights. It contends
that 49 C.F.R. § 837.4 contemplates subject matter
jurisdiction over a claim under the regulation.
reply, the NTSB points out that Wolk does not assert an APA
claim in its First Amended Complaint (FAC). Even if it
did, the NTSB asserts the claim would fail because Wolk has
an adequate remedy provided by FOIA and because Wolk has
failed to allege that the NTSB acted arbitrarily or
capriciously in refusing to provide materials not covered by
FOIA. It also argues that an APA claim is
premature because the NTSB has not taken action that may be
reviewed under the APA. The NTSB also contends that there is
no private right of action for obstruction of
standard of review of a motion to dismiss made pursuant to
Rule 12(b)(1) depends on whether the motion is a facial
attack or a factual attack. See Constitution Party of Pa.
v. Aichele, 757 F.3d 347, 357-58 (3d Cir. 2014);
Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d
Cir. 2006). Consequently, we must distinguish between facial
attacks and factual attacks. A facial attack “is an
argument that considers a claim on its face and asserts that
it is insufficient to invoke the subject matter jurisdiction
of the court” because of some jurisdictional defect.
Constitution Party, 757 F.3d at 358. In reviewing a
facial attack, as we do in considering a Rule 12(b)(6)
motion, we accept the well-pleaded allegations in the
complaint as true and draw all reasonable inferences arising
from them in favor of the plaintiff. Gould Elecs., Inc.
v. United States, 220 F.3d 169, 176 (3d Cir. 2000).
factual attack is “an argument that there is no subject
matter jurisdiction because the facts of the case...do not
support the asserted jurisdiction.” Constitution
Party, 757 F.3d at 358. In other words, in a factual
challenge to jurisdiction, the defendant disputes the
allegations on which jurisdiction depends. In that instance,
we need not accept plaintiff's allegations as true and we
may consider materials outside the complaint to determine
whether the exercise of federal jurisdiction is proper.
CNA v. United States, 535 F.3d 132, 139, 145 (3d
NTSB makes a facial challenge. It argues that the court lacks
jurisdiction because the NTSB enjoys sovereign immunity as to
Wolk's claims. Thus, we shall accept as true the facts as
they appear in the FAC and draw all possible inferences from
those facts in Wolk's favor.
waived, sovereign immunity shields federal agencies from
suit. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994).
Sovereign immunity is a complete defense because it divests
the court of jurisdiction to hear the claim. See United
States v. Bein, 214 F.3d 408, 412 (3d Cir. 2000).
contends that 49 C.F.R. § 837.1 waives the NTSB's
sovereign immunity because it contemplates receipt by an NTSB
employee “of a subpoena, order, or other demand . . .
by a court or other competent authority or by a private
litigant.” 49 C.F.R. § 837.1(a). A government
regulation alone cannot waive sovereign immunity. Heller
v. United States, 776 F.2d 92, 98 n.7 (3d Cir. 1985).
The plaintiff must identify a statute that unequivocally
waives immunity. Clinton Cty. Comm'rs, 116 F.3d
at 1021 (quoting United States v. Nordic Village,
Inc., 503 U.S. 30, 33 (1992) (additional quotations
omitted)). Here, Wolk relies on 49 C.F.R. § 837.4. This
regulation does not apply to actions against the NTSB. It
“sets forth procedures to be followed when requesting
material for use in legal proceedings (including
administrative proceedings) in which the [NTSB] is not a
party . . . .” 49 C.F.R. § 837.1(a) (emphasis
invokes the APA, which provides an express waiver of
sovereign immunity. It permits a person “suffering
legal wrong because of agency action, or adversely affected
or aggrieved by agency action within the meaning of a
relevant statute” to bring an action for non-monetary
relief. 5 U.S.C. § 702.
relief under the APA, the plaintiff must assert a claim under
it. Clear Sky Car Wash LLC v. City of Chesapeake,
Va., 743 F.3d 438, 445 (4th Cir. 2014) (finding
plaintiff “cannot seek relief under the APA because it
never asserted an APA claim in its complaint, ”
notwithstanding reference to APA in statement of
jurisdiction). In the FAC, Wolk does not specifically invoke
the APA. But, because he could do so in a second amended
complaint, we address the issue now in the interest of
judicial economy and efficiency.
the APA, “final agency action for which there is no
other adequate remedy in a court [is] subject to judicial
review.” 5 U.S.C. § 704. The NTSB contends that an
APA claim would fail because Wolk has an adequate remedy
provided by FOIA. Wolk seeks “documents, data and
evidence” under FOIA. His obstruction of justice and
violation of due process claim seeks these materials and